NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 20-3464

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OLYNE TUTTY ALADE,

 Petitioner

v.

ATTORNEY GENERAL 

UNITED STATES OF AMERICA,

 Respondent

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On Petition for Review of a Decision of the

Board of Immigration Appeals

BIA No. A077-606-583

(U.S. Immigration Judge: Alice Song Hartye)

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

October 5, 2021

Before: SHWARTZ, RESTREPO, and SCIRICA, Circuit Judges.

(Filed: December 14, 2021)

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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SCIRICA, Circuit Judge

Petitioner Olyne Tutty Alade asks us to review a denial by the Board of 

Immigration Appeals of her motion to reopen her immigration case based on her 

allegations that she received ineffective assistance of counsel in the initial proceedings. 

Alade claims the legal assistance by her prior counsel was constitutionally ineffective 

because he should have filed an application for asylum and related relief of withholding 

of removal or under the U.N. Convention Against Torture (“CAT”). Because Alade 

cannot show prima facie eligibility for the relief she claims prior counsel should have 

pursued, we will deny the petition for review.

I.

Alade, a native and citizen of Liberia, is facing a Final Order of Removal from the 

United States. The Order of Removal arose from two convictions of theft of movable 

property, in violation of 18 Pa. Cons. Stat. § 3921(a), from 2013 and 2014. In the initial 

proceedings before the Immigration Judge, Alade’s prior counsel sought adjustment of 

status under 8 U.S.C. § 1159(a) and a waiver of inadmissibility under 8 U.S.C. § 1159(c). 

Despite initially indicating that he might do so, prior counsel never filed an application 

for asylum and related relief either of withholding of removal or under the CAT. The 

grounds for the application would have been Alade’s sexual orientation. After the Board 

upheld the Immigration Judge’s decision, Alade retained new counsel and filed a motion 

to reopen alleging she received ineffective assistance of counsel due to prior counsel’s 

failure to apply for asylum and related relief on her behalf.

On November 13, 2020, the Board denied Alade’s motion to reopen for three 
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reasons: (1) her motion was procedurally deficient; (2) prior counsel’s election not to 

pursue asylum and related relief was a “tactical decision[],” A.R. 4; and (3) Alade did not 

demonstrate she suffered prejudice as a result of prior counsel’s representation, since she 

could not show prima facie eligibility for the relief for which she claims he should have 

applied. In her petition for review, Alade challenges each of these bases for the Board’s 

denial of her motion to reopen.

We agree with the Board’s conclusion that Alade could not show prima facie

eligibility for the relief she claims prior counsel should have pursued and will deny the 

petition on that ground. Accordingly, we need not reach whether Alade’s motion was 

procedurally deficient and whether prior counsel’s failure to apply for the relief at issue is 

properly viewed as a tactical decision.

II.

We have jurisdiction, under 8 U.S.C. § 1252(a)(2)(D), to review “constitutional 

claims or questions of law” in a challenge to a final order of removal, 8 U.S.C. 

§ 1252(a)(1). “We review the denial of a motion to reopen for an abuse of discretion. 

Thus, the BIA’s ultimate decision is entitled to broad deference, and will not be disturbed 

unless it is found to be arbitrary, irrational, or contrary to law.” Zhu v. Att’y Gen., 744

F.3d 268, 271 (3d Cir. 2014) (alteration, quotation marks, and citations omitted). “We 

review de novo questions of law, such as whether petitioners’ due process rights to the 

effective assistance of counsel have been violated.” Contreras v. Att’y Gen., 665 F.3d 

578, 583 (3d Cir. 2012). Other questions of law, such as whether the BIA applied the 

correct legal standard, are also reviewed de novo. Fadiga v. Att’y Gen., 488 F.3d 142, 
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153 (3d Cir. 2007).

An ineffective assistance of counsel claim in a removal proceeding requires a 

noncitizen to demonstrate “(1) whether competent counsel would have acted otherwise, 

and, if yes, (2) whether the alien was prejudiced by counsel’s poor performance.” Rranci 

v. Att’y Gen., 540 F.3d 165, 175 (3d Cir. 2008) (quoting Fadiga, 488 F.3d at 157). 

Establishing prejudice requires a prima facie showing of eligibility for the relief sought, 

which is satisfied by “a ‘reasonable likelihood’ that the result of the removal proceedings 

would have been different had the error(s) not occurred.” Contreras, 665 F.3d at 584

(quoting Fadiga, 488 F.3d at 159). “While a ‘reasonable likelihood’ of a different 

outcome requires more than a showing of ‘a plausible ground for relief from deportation,’ 

it does not require that a different outcome was more likely than not.” Fadiga, 488 F.3d 

at 160-61 (quoting United States v. Charleswell, 456 F.3d 347, 361 (3d Cir. 2006)).

III.

In challenging the Board’s conclusion that she had not shown prejudice, Alade

focuses exclusively on whether the Board properly applied the “reasonable likelihood” 

standard or instead held Alade to a higher standard. Specifically, Alade points to the use 

of “establish” in one sentence in the Board’s decision as signaling a higher burden of 

proof than reasonable likelihood: “General conditions of discrimination and episodes of 

violence in a country are not usually sufficient to establish a withholding of removal or a 

torture convention claim.” A.R. 4.

We disagree that the Board applied the incorrect standard. We also disagree with 

Alade’s reading of this one sentence in the context of the Board’s decision as a whole. In 
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Guo v. Ashcroft, it is true we held that, in the context of the Board’s statement that a 

petitioner must “establish that there is a pattern or practice [of enforcing the family 

planning policy against Chinese nationals with foreign-born children] in her homeland,” 

386 F.3d 556, 564 (3d Cir. 2004) (quoting the Board’s decision) (emphasis and

alterations in original), the word “‘establish’ means the evidence for asylum outweighs 

the evidence against it.” Id. But the context here is different. In this case, the Board did 

not state that Alade was required to “establish” anything, but merely that a certain kind of 

evidence is generally insufficient to establish the type of claims Alade alleges prior 

counsel should have made. Furthermore, the Board’s decision describes the correct 

standard throughout the rest of its analysis. Accordingly, we are satisfied the Board 

applied the correct standard in reviewing Alade’s claims of prejudice.

Moreover, on a de novo review of the record, we agree with the Board’s 

conclusion that Alade did not make out a prima facie case for the relief requested or 

demonstrate a reasonable likelihood of prevailing on her claims absent prior counsel’s 

alleged errors. For her asylum claim, Alade had an aggravated felony conviction, which 

made her ineligible for asylum. See 8 U.S.C. § 1158(b)(2)(A)(ii), (b)(2)(B)(i). For her 

withholding of removal and CAT protection claims, Alade did not meet the standards for 

demonstrating eligibility by failing to provide any evidence of her individualized risk of 

persecution or torture. See 8 C.F.R. §§ 1208.16(b)-(c); Bravo v. Att’y Gen., 16 F.4th 

1083, 1087 (3d Cir. 2021) (explaining that proper inquiry for relief under CAT is whether 

an “individual” has established likelihood of “torture[] if removed to the proposed 

country of removal” and requiring an IJ to focus on the petitioner). Although Alade 
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submitted evidence of her sexual orientation and generally prevailing conditions for 

LGBTQ individuals in Liberia, she did not provide any evidence of her individualized 

risk of persecution or torture. Therefore, we agree with the Board’s determination that 

Alade failed to make the requisite specific showing of a reasonable likelihood of 

prevailing on her claims regardless of prior counsel’s alleged errors.

IV.

Because we hold Alade did not show prima facie eligibility for the relief she 

claims prior counsel should have pursued, she was not prejudiced by his representation 

regardless of the alleged errors she has challenged. Accordingly, we will deny the 

petition.